Updates
February 14, 2020

Vermont Legislative Update 02-14-2020

An analysis from DRM's Government & Public Affairs Team

Vermont Legislative Update Quick Links

Divided House committee approves Act 250 compromise

Global Warming Solutions Act moves forward

Senate committee approves ban on flavored tobacco products

Bill would ratchet up utility renewable energy standards

Vermont unfunded pension liabilities continue to raise concerns

Prekindergarten bill shows that nothing is simple

Afterschool programs a subject of interest

Open Meeting Law exemption sought for Victims Compensation Board

Push to end surprise medical billing

Strong opposition to health care reform bill

Sustained home visiting services funding subject to hearing

Suicide Prevention Day at the State House

Administration of stem cell products subject to hearing

Divided House committee approves Act 250 compromise

After more than a year of work, the House Natural Resources Committee voted 6-3 to approve sweeping changes to Vermont’s landmark land-use law, including a provision redesigning the Natural Resources Board and limiting the authority of volunteer district commissions. The committee was more sharply divided than the vote indicated, as two absent members would likely have voted no.

The bill proposes a new five-member board made up of three new full-time professionals plus two commissioners from the region where a project is proposed. Local commissions would still preside over minor Act 250 permits, while major permits will be heard only by the new Board. Appeals would go to the Vermont Supreme Court, eliminating one step in the current appeals process. This controversial provision has consumed much of the committees time this session, with critics arguing it will diminish the role of local communities in the process.

The bill would also exempt developments in designated downtowns and neighborhood development areas from Act 250 review, while increasing protections to wildlife connector areas and floodways. Projects above 2,000 feet would be subject to Act 250 review.

The bill is expected to make stops in several House committees before being sent to the Senate.

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Global Warming Solutions Act moves forward

The Global Warming Solutions Act, H.688 was voted out of the House Committee on Energy and Technology on Tuesday after the committee largely rejected last-minute proposed changes from Agency of Natural Resources Secretary Julie Moore. Two minor recommendations were incorporated into the final draft: 1) designating the of Secretary of Administration as the Chair of the Vermont Climate Council, and 2) moving the date of adoption for the Climate Action Plan from July to December of 2021.

The Administration sought to authorize the Council to come to the legislature in the event that ANR or another agency is unable to meet the requirements and needs additional legislative authority. Rep. Briglin, D-Thetford, said this authority is implicit in the bill, but after simplifying the language it was added to the bill.

Rep. Higley, R-Lowell, and Rep. Scheuermann, R-Stowe, both voted no. Scheuermann said the bill gives the executive branch too much authority. 

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Senate committee approves ban on flavored tobacco products

The Senate Health & Welfare Committee voted 5-0 on Friday morning in favor of S.288, a bill to ban all flavored tobacco products. The unanimous vote came as a surprise, as several members had expressed doubts about the bill in the face of a strong lobbying effort by the tobacco industry. The bill bans flavored vaping products as well as menthol cigarettes. The tobacco industry has argued that the bill would unfairly ban an adult product, despite the fact that cigarettes would, of course, continue to be legally available for adults.

The Economic Development, Housing and General Affairs Committee also took testimony on the bill this week. Jennifer Costa, American Cancer Society Vermont Government Relations Director, testified about the tremendous growth in youth usage of flavored tobacco products. Costa’s presentation is here. More than one-half of youth smokers use menthol cigarettes, which would be banned under the bill. The number is vastly higher for African American smokers.

The bill will be reviewed by several other Senate committees before going to the floor. 

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Bill would ratchet up utility renewable energy standards

The Senate Natural Resources Committee may have been overwhelmed by the complex testimony it received on Friday from several of Vermont’s electric utility companies. The companies were testifying on S.267, a bill that would increase Vermont’s renewable energy standards.

The bill would require utilities to obtain 100 percent of their power from renewable sources by 2030, with 10 percent of that supply coming from so-called “distributed,” or small-scale, renewable power.

Utility witnesses from Green Mountain Power and Vermont Electric Cooperative told the committee that while they could meet the overall renewable standard, the requirement for more distributed power would substantially increase rates. For GMP, that increase would be from $15-25 million per year after 2032, with VEC facing a proportionally similar increase.

Hantz Presume of VELCO, the state’s transmission company, presented a PowerPoint presentation that described some of the challenges the state will face as it increases solar generation. That presentation likely left many committee members feeling the need to spend a great deal more time on the bill before they fully understand its implications. 

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Vermont unfunded pension liabilities continue to raise concerns

Last week, State Treasurer Beth Pearce told the Senate Appropriations Committee that Gov. Phil Scott is shortchanging the pension funds in his proposed FY 2021 budget.

This week, the administration responded. Department of Finance and Management Commissioner Adam Greshin and Agency of Administration Deputy Secretary Brad Ferland said that before the administration obligates additional money, they want to take a holistic approach to the state’s four retirement funds, what they are calling a “four bucket plan.”

Ferland outlined the 30-year amortization schedule that was agreed to in 2008. Of the $1 billion in liabilities the state faced 11 years ago, Vermont is now burdened with $2.369 billion in these two pension funds. This bill comes due in 18 years and each year the state is falling further behind.

Ferland provided the committee with a handout and clarified that the administration fully funded their statutory actuarial obligation of $199.1 million to the pension and OPEB (retirement) funds in their 2021 budget. The Treasurer had asked for an additional allocation of $11.1 million. In response, Scott committed an additional $2.4 million to the teachers’ OPEB fund but didn’t commit the remaining $6.1 million of the ask.

The committee was impressed with the gravity of the state’s fiscal situation but felt they need a structured analysis to best determine next steps. The Vermont Business Roundtable’s Pension Reform Task Force has performed a deep dive on this issue and their report can be found here.

The Roundtable’s report could provide the relevant legislative committees with a starting off point for some very necessary albeit difficult discussions.

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Prekindergarten bill shows that nothing is simple

The House Education Committee had a tough week as they reworked a bill that is intended to simplify the process for regulating pre-K programs. One meeting started with a moment of uncomfortable humor when Committee Chair Rep. Kate Webb, D-Shelburne, referenced the 20 drafts the committee reviewed in 2018 when it last tried to reform the pre-K law, before the bill died.

Sarah Kenney, Senior Director of Policy of Let's Grow Kids, and several committee members expressed concern that a new mandate for increased hours of a licensed teacher in private settings does not take into account the workforce logistics or the financial consequences to families and to programs of adding many more hours of licensed teacher instruction. Webb and others maintain that there will be no additional costs to parents or programs by adding those hours.

The debate about the new teacher requirement for private providers opened up an old and slightly uncomfortable theme: the belief that the education committee’s primary concern is public programs and that private programs should be worried about elsewhere. It also caused some tension over the issue of wage differences between public and private providers. Kenney reported that providers say they do not have the capacity to bring on licensed teachers for ten hours a week of direct instruction. She said LGK continues to advocate that having licensed teachers in prekindergarten is the right direction to move in and that there are not the resources in place to do so. Webb expressed skepticism about the notion of inequities in compensation in public and private settings. Webb said that the bill could not be expected to solve the problems of financing early childcare, of zero- to three-year olds.

Meanwhile, the Agencies of Human Services and of Education have not yet testified on the bill. The committee plans to vote the bill out next week.

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Afterschool programs a subject of interest

The House Education Committee took testimony this week about existing afterschool programs and the needs and opportunities for expansion. Jess DeCarolis, Division Director, Student Pathways, Agency of Education testified about 21st Century Community Learning Centers and provided a map of 21C programs in the state. DeCarolis explained that the main form of funding for K-12 afterschool and summer programming is the federal Every Student Succeeds Act (ESSA) money and this is funneled through the State Agency of Education. The annual allocation for grants has been around $5.6 million in Vermont. Schools in partnership with hundreds of community providers deliver the programming. DeCarolis and others emphasized that often in Vermont’s small towns, the school is the bedrock of the town and so it often makes sense to base the program in the school. One third of the 21C centers are licensed child care centers in addition to housing afterschool programs. Some of the 21C centers partner with their local Career and Technical Education Centers creating a career and workforce pathway from middle school.

Committee Chair Kate Webb, D-Shelburne, asked DeCarolis what she would do with money from cannabis regulation if it were to be allocated to the Education Fund, and if it were then earmarked for afterschool. She answered that they would scale up and build upon the existing process in place rather than create something new. Later, Webb asked Holly Morehouse, Executive Director, Youth Services Advisory Council, “If you had $2 million how would you keep kids away from drugs?” Morehouse responded that data shows a strong correlation between afterschool and decreases in kids and teens across all risky behaviors – alcohol, substances, and sexual activity. Both DeCarolis and Morehouse estimated the current gap in afterschool programming at $2.5 million based on the number of quality grant applications that are denied due to lack of funds.

A principle from Newark, Vermont testified that 65 out of 67 students in the school are registered for afterschool, saying, “The community depends on it. Many towns in the state are much like Newark. We are a town of about 500 people. The school is just about the only entity in the town. Working families rely on it for before school and after school.”

Webb said the whole State House is interested in afterschool right now. “Funding might not be available right away, but we are interested.”

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Open Meeting Law exemption sought for Victims Compensation Board

The House Government Operations committee reviewed a proposed exemption to the Open Meeting Law on Thursday that would add to the dozens that now exist. H.558 would exempt the Victims Compensation Board from the Open Meeting Law, and was prompted by a notice received by the board from the Attorney General’s office that it was required to comply with the law.

Robert Paolini, attorney for the board, told the committee that he believes the law is silent on the applicability of the Open Meeting Law requirements to the board. Since its creation, the board has considered its proceedings confidential and has not followed the Open Meeting Law requirements. Paolini explained that the board operates two units, a compensation unit and a restitution unit. The restitution unit collectors use false names because they deal with criminal defendants, often intercepting cash flow such as lottery winnings and tax returns, provoking threats from defendants. Paolini is concerned that public board meetings would compromise staff safety. Tucker Carlson, legislative counsel for the committee, pointed out that other Victims Compensation Board records, including applications, are exempt from the Public Records Act and therefore not available to the public.

Mike Donoghue, Executive Director of the Vermont Press Association, asked the committee for time to review the proposal. He pointed out the many existing exemptions that currently exist for the Open Meeting and Public Records law and reminded the committee of the importance of a transparent government. He also noted that many public servants receive threats, and would like to look further into the frequency and type of threats that board staff has received and whether they have been reported.

The committee did not indicate if they would take further action on the proposal. 

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Push to end surprise medical billing

The Senate Finance Committee heard from providers and health insurers on S.309, a bill that prohibits certain provisions in contracts between health insurers and health care providers. It would also limit a patient’s out-of-pockets exposure for emergency services delivered at out-of-network health care facilities and for nonemergency services delivered by out-of-network providers at in-network facilities.

Independent providers and hospitals support the bill, saying it will protect Vermonters from surprise medical bills without penalizing referring providers for recommending the care that they think is best for their patient. In the summer of 2019, Blue Cross Blue Shield of Vermont implemented a payment policy that has negatively impacted providers. In certain circumstances, providers who refer their patients for out-of-network services can now be held financially liable for fees charged to patients by those providers. MVP does not have a similar policy.

Blue Cross Blue Shield Director of Government and Media Relations Sara Teachout said the policy was adopted because they had noticed a cost increase for nonparticipating providers. She said this policy is directed at patients who are referred to an out-of-network provider by a participating provider without first obtaining a prior approval. Teachout said the problem is not as prevalent as in other states, but highlighted that they have had significant issues with out-of-network labs charging excessive fees. Teachout is also opposed to extending the practice for nonemergency services, saying this protects patients and providers from out-of-network charges that are egregious. 

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Strong opposition to health care reform bill

Representatives from the Vermont Association of Hospitals and Health Systems, Bi-State Primary Care Association, and Blue Cross Blue Shield of Vermont appeared before the Senate Health and Welfare Committee on Wednesday to oppose S.290, a bill that expands the Green Mountain Care Board’s regulatory authority. The entities referenced Act 113 of 2016 and Act 52 of 2019, which already requires extensive regulatory oversight of hospitals, insurance companies and OneCare Vermont (the state’s accountable care organization), and provides a comprehensive framework for health care reform.

BSPCA Vermont Director of Public Policy Helen Labun said providers have hit maximum regulation. She said the resource cost of implementing these new requirements, the idea that the proposal collects a lot of data without necessarily providing new insight into the health care system, and the disruption to health care reform efforts are reasons why her members oppose the bill. She said it is unclear how the GMCB will build the capacity to effectively manage and fund everything in this bill, but it is clear it will be expensive.

Vermont Association of Hospitals and Health System Vice President of Government Relations Devon Green said instead of helping rural hospitals, this bill adds further burden and expense. She said, “Hospitals are participating in health care reform because it’s an opportunity for providers and patients to work together to determine how to provide the optimal health care through evidence-based initiatives and coordinated care. It’s also the future for rural hospitals. Prospective payments provide hospitals with the predictability they need to better serve their community instead of balancing their budgets on a bad flu season.” Green said the legislative process is breaking that promise of predictability by reopening and threatening the status of the accountable care organization and health care reform year after year.

OneCare Vermont Chief Executive Officer Vicki Loner said that the preponderance of the reporting, certification, and budgeting requirements for OneCare Vermont already exist through the ACO certification and budget process required under Act 113 of 2016. OneCare undergoes a voluntary annual financial audit by a nationally recognized external evaluator, is currently performing an assessment of its internal compliance plan, and is subject to an annual evaluation by the federal government on Vermont’s success, including the success of the ACO. Loner said it is important to not add additional administrative and financial burden to an already taxed workforce and hospital system and to allow providers to focus on delivery system transformation. The cost of ACO regulation through billback, which is financed by the hospitals, is projected to double from 2018 to 2019. She does support efforts to realign the certification and budget processes and to explore the feasibility of a two year budget cycle.

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Sustained home visiting services funding subject to hearing

The House Human Services Committee took testimony on Thursday on H.778, a bill that would expand access to sustained home visiting under the existing Strong Families Vermont program. The committee wrestled with questions about the different funding sources from the state’s Children Integrated Services program and federal funding known as Maternal, Infant and Early Childhood Home Visiting Program, as well as the different programmatic services of sustained home visiting versus responsive home visiting.

Chloe Learey, Executive Director of Winston Prouty Center for Child and Family Development in Brattleboro, testified in favor of using any available dollars to improve CIS funding before adding more resources to the sustained home visiting model. She also described the services offered by her agency under the CIS model.

Jill Mazza Olson and Magdalene Miller testified on behalf of the VNAs of Vermont. They described the sustained home model known as Maternal Early Childhood Sustained Home Visiting Program, funded under federal Maternal, Infant and Early Childhood Home Visiting Program dollars. Olson supports passage of the language in the bill which would create the policy foundation for expansion of sustained home visiting under Medicaid, with a federal match. She urged the committee to create the policy foundation for the service, even if no dollars are appropriated. She declined to weigh in on whether it was better to fund CIS or sustained home visiting.

The committee also heard from Heather Wilson, Early Childhood Support Team Leader at the Parent Child Center at Northwestern Counseling and Support Services, talked about a collaboration in St. Albans to create universal home visiting in their community. She described the collaboration between the home health agency and the parent child center on mental health support for postpartum mothers. Wilson also took the opportunity to express support for another bill that would create a funding formula for parent-child centers and increase their master grant by $4million over three years. 

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Suicide Prevention Day at the State House

In honor of Suicide Prevention Day, the House Health Care Committee spent Thursday hearing from the Department of Mental Health, OneCare Vermont, provider groups and families on suicide preventions efforts in the state. Chair Bill Lippert, D-Hinesburg, said the committee has been asked to prioritize funding and his committee needs to understand how state agencies and OneCare Vermont are working in tandem to advance the all payer model goal to reduce deaths by suicide and not duplicating efforts. He said that are many priorities with insufficient funding and lawmakers will need to make some very tough decisions.

Department of Mental Health Commissioner Sarah Squirrell said Vermont continues to grapple with the impact of suicide. Vermont’s suicide death rates are higher than US rates and is the second leading cause of death in Vermont for ages 15-34. To address this, Gov. Phil Scott’s budget proposal invests $1 million more in suicide prevention and mental health services to include the Prevention Lifeline network, the Zero Suicides initiative, and services for veterans and elders. The state has also implemented a crisis text line.

OneCare Vermont Chief Operating Officer Sara Barry addressed how they are attempting to integrate and align physical and mental health. She described the delivery system reform investment proposal for emergency department navigators that will attempt to reduce the use of the emergency department for urgent mental health needs in the emergency departments. Barry also highlighted other projects such as the “Sheds model” to reduce social isolation and build resiliency in older Vermonters and the Psychiatric Urgent Care for Kids, a home-like environment stocked with kid-friendly activities and sensory tools. Funded by OneCare, this is a partnership between United Counseling Service and Southern Vermont Medical Center and has shown a 40 percent reduction in emergency department utilization for elementary aged children in Bennington County.

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Administration of stem cell products subject to hearing

The Senate Health and Welfare took testimony on Friday on S.252, a bill that proposes to require health care providers who administer stem cell products that are not approved by the U.S. Food and Drug Administration to provide notice of this fact to their patients and in their advertisements, and to obtain specific informed consent prior to performing an unapproved therapy.

University of Vermont Medical Center Professor of Medicine and Researcher Dr. Daniel Weiss described the different stem cells, the current FDA-approved use of stem cells, and the unproven and unauthorized use of stem cells. Weiss said the worldwide proliferation of “stem cell” clinics are putting patients at risk with these unproven, untested and potentially dangerous stem cell treatments. It is estimated that 60,000 patients are treated every year with unproven stem cell therapies. Between $300 million and $2.4 billion is spent every year on such treatments.

Over the past few years, a growing number of stem cell clinics have opened, which offer treatments that are not yet scientifically proven or reliable and that have not been rigorously studied in clinical trials. The clinics do this by utilizing loopholes in current FDA regulations, something the FDA is actively working to prohibit. These clinics unfortunately take advantage of these situations and charge very high prices; stem cell treatments can cost upwards of thousands of dollars out of pocket since the treatment is not typically covered by health insurance. Further, these clinics offer misleading information about potential efficacy that is confusing to patients and to caregivers.

The committee will take more testimony next week.

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